Clothing and Punishment: Cultural Rights in Australia

By Holly Kendall | 08 May 12

One of the most problematic areas of international human rights law is the right to culture. It is ambiguous, yet the right to culture manifests itself in many aspects of each individual’s daily life. The right to culture provides equality to all members of society, allowing them to freely practice their culture. Further, it prevents harm being caused to an individual if their society or legal system fails to recognise their culture, and it provides for the inclusion of minority groups in a democracy. Many broader human rights facilitate the right to culture, such as freedom of speech. However, there are also cultural practices that may conflict with other human rights.

In a multicultural society like Australia the right to culture can be controversial. How does a liberal democratic society respect a multicultural population’s right to culture, yet preserve its own culture? Right Now is seeking to bring some clarity to what the right to culture is and examine how Australian society is handling the challenges of a multicultural population.

The right to culture was first established in the Universal Declaration on Human Rights. Article 27 states that “Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

In a multicultural society upholding and ensuring the right to culture will continue to challenge how we govern political, social, economic and judicial spheres.

The International Covenant on Economic, Social and Cultural Rights expanded on this in Article 15. It binds states to take steps for the conservation, development and diffusion of science and culture. It also requires that the states respect freedom of scientific research and creative activity and recognise the benefits to be derived from encouragement and development of international contacts and co-operation in the scientific and cultural fields.

The right to culture has been further strengthened in the United Nations Declaration on the Rights of Indigenous Peoples, which provides that members of an ethnic, linguistic or religious minority shall not be denied the right to enjoy their culture, speak their language, or practice their religion.

At a community level the Convention Concerning the Protection of the World Cultural and Natural Heritage imposes a duty on states to respect and protect world heritage sites that are of universal value, such as the Great Barrier Reef, Uluru and the Sydney Opera House.

The right to culture, however, is limited at the point where it infringes on another human right. This gives rise to the question: when does the right to culture contradict another human right? Is a woman wearing a burqa harmed when her political identity is denied because she is wearing culturally appropriate attire? Can harm result from consideration of Aboriginal customary law in criminal sentencing?

As a person I have the right to freedom of expression, though this is not an absolute right in Australia, in what I say or what I wear. On that basis, if I held a belief that my religion required that I dress modestly, and the corresponding cultural belief that “modestly” meant I was required to wear a burqa, I would expect that I have the right wear a burqa. Despite this straightforward reasoning, the cultural practice of wearing a burqa does raise questions in our society about whether it causes harm. In Australia’s liberal democracy where individuality is prized, where rights are attached to individuals and where personhood is somewhat based on being “visible”, the burqa potentially limits the ability of some women to fully participate in society. Obviously there are some instances where this is not the case. On the one hand, the burqa is just a piece of clothing like any other that women wear, and they freely participate in all political, social and cultural aspects of their community. On the other hand, there are circumstances where the burqa is used to remove a woman’s identity and prevent her from taking an active part in aspects of life.

By providing women with the freedom to exercise their right to culture, are we reasserting our liberal democratic culture of freedom?

We should also consider what impact our stance on cultural rights, and the practice of human rights generally, has on the community as a whole. By providing women with the freedom to exercise their right to culture, are we reasserting our liberal democratic culture of freedom? Or are we sending the message that it is acceptable for women who wear potentially oppressive burqas to not be active participants in society?

Beyond philosophical considerations there are practical concerns, as demonstrated by the Carnita Matthews case, in which Ms Matthews refused to remove her veil when pulled over for a random breath test and was subsequently convicted of falsely accusing a police officer of trying to remove her veil. The conviction was overturned on appeal as the judge found that because the woman that made the complaint was wearing a burqa it was impossible to confirm her identity. In this case, the wearing of a burqa impacted on the effective operation of the law.

Cases like the Carnita Matthews affair can lead to knee jerk reactions, such as introducing bills to ban the burqa. This is an area where a reasonable approach must be taken to ensure that the laws of the state are implemented in a culturally appropriate way, which may include, for instance, having a woman’s identity confirmed by a female police officer.

In contrast, the liberal democracy that prides itself on the rights of the individual was brought to this country by a people that refused to acknowledge the humanity, let alone the culture, of the traditional Indigenous inhabitants. Since colonisation, Indigenous people have struggled to assert their rights as people, their right to the land and more recently their right to their culture.

Can harm result from consideration of Aboriginal customary law in criminal sentencing?

In 2006 the Howard Government amended the Commonwealth Crimes Act 1914 to prevent judges from considering Aboriginal customary law to excuse, justify, authorise or impact on the seriousness of criminal behaviour in sentencing. This was in reaction to a case in which a man anally raped a 14-year-old girl because she had been promised to him in marriage. He was given a suspended sentence upon serving a one-month term of imprisonment. This was a horrendous crime and the punishment should have reflected its severity. The reaction to remove the consideration of Aboriginal customary law as a mitigating factor, however, has had regrettable ramifications for the Indigenous community’s right to culture.

Removing consideration of Aboriginal customary law in sentencing removed one of the few interfaces between Aboriginal customary law and the western legal system in Australia. For law to be effective it must be understood and reflect the people it seeks to govern. The Australian legal system has rarely reflected Aboriginal people or their law. At the time of the changes to the Crimes Act 1914 Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, made the point that recognition of Aboriginal customary law is an important form of empowerment for the Indigenous community that facilitates self-governance, self-determination and maintains the fabric of traditional society. Removing consideration of Aboriginal customary law further alienates Aboriginal people from the Australian legal system. This has significant implications considering that the rate of imprisonment of Aboriginal and Torres Strait Islanders was 14 times higher than the rate of non-Indigenous prisoners at 30 June 2011. Commissioner Calma also emphasised that abuse and violence towards women is not part of Aboriginal customary law and that greater education is required within the Indigenous community to ensure the protection of all human rights.

At the state level, Aboriginal customary law has been – to varying degrees and with varying success – integrated into the mainstream judicial structure to achieve cultural sensitivity, inclusion and respect for the law. State models incorporate elders within the court process to provide advice on sentencing and cultural issues, to speak to the accused in their local language and to discuss with the accused how their behaviour has impacted upon Aboriginal traditions and cultures. In Queensland a magistrate is required to consider the submission from a community justice group or elder in sentencing. Benefits include increasing court attendance rates and more effective undertakings and promises by offenders.

When does the right to culture contradict another human right?

In 2007 the Howard Government extended the exclusion of customary law as a mitigating factor to apply to any offense against a law of the Northern Territory as part of the Northern Territory Intervention.

As the effect of the Northern Territory National Emergency Response Act 2007 is set to cease in August 2012 the Gillard government faces tough decisions about how to proceed, and the question of how Aboriginal customary law should be considered in sentencing is once again up for debate. The Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Bill 2011 is currently before the Senate. It seeks to amend the Crimes Act 1914 so that Aboriginal customary law and cultural practices can be considered in relation to offenses against the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Environment Protection and Biodiversity Conservation Act 1999 and associated cultural heritage acts.

This is an important first step to improving the recognition of Aboriginal customary law but is extremely limited. A more effective approach has been recommended by the Australian Human Rights Commission that the Bill be amended so that Aboriginal customary law and cultural practice only be excluded from sentencing decisions that involve violence or sexual abuse. The recommended amendment would shift the emphasis to inclusion as opposed to exclusion of Aboriginal customary law while maintaining protection of human rights.

In a multicultural society upholding and ensuring the right to culture will continue to challenge how we govern political, social, economic and judicial spheres. Our culture and governance are in a state of flux. Change has been very slow in recognising Aboriginal customary law as the first law of the nation but much faster in recognising the rights of immigrants to practice their culture. This has raised serious issues in each case. Governance must be adaptable to accept challenges from our changing cultural practices but must maintain its integrity to ensure that human rights are always protected. Australia has a mixed history in terms of respecting the right to culture and will continue to face further cultural challenges.